Montana Supreme Court makes key changes to student eligibility rules

Before Zayne Hert ever put on a Colstrip High School basketball uniform – before he was even born – Montana Supreme Court Justice James Nelson predicted his future, when the justice wrote about student athletes who may try for an extension of eligibility, only to have the season or school year end before a court could intervene.

Hert had struggled with remote learning and online classrooms during COVID, and his grades dropped, leading to academic ineligibility to play on the team during his sophomore year. As he approached his senior high school season, his parents asked if he would be permitted to participate as a fifth-year senior, noting that one of his school years was interrupted by the pandemic and academic ineligibility.

School leaders said he’d probably be able to play. But when the Montana High School Association took up the case, the board unanimously rejected the waiver, citing its own eligibility rules. But, the quasi-public organization which oversees all Montana extra curricular activities, said it’s a private organization and owed them no response, despite Hert’s parents asking repeatedly for a written explanation of the decision.

Rosebud County District Court Judge Rennie L. Wittman agreed, saying the organization had made a decision, and by the time the court proceedings got under way, Hert had graduated during his final, fifth year, but by completing school, it rendered the case moot, according to Wittman. The judge reasoned that the law, even if it agreed with Hert, couldn’t turn back time and let him play his final season.

However, the Montana Supreme Court, getting Hert’s case on appeal, noted several other similar cases have been raised with the same ending: Students graduated or completed their eligibility before the judicial process could come to a conclusion, leading to a string of legal challenges which wound up being moot, which happens when a court can no longer remedy a situation. 

That was exactly what former Montana Supreme Court Justice James Nelson warned about in 2002, when he argued in dissenting (minority) opinions that similar cases were likely to continue until the Montana Supreme Court decided to intervene.

In 2002, Nelson wrote:

“The constitutional issues raised in this case are important and capable of repetition, yet will likely always escape review…Unfortunately, by mechanically applying the mootness doctrine in these types of cases, the legal issues presented never get resolved despite the fact that the same issues can be raised in the future in the same manner by a different litigant. The result is that the losing party’s remedy of appeal is continually nullified.”

Now, 24 years after he wrote those words, the Montana Supreme Court took Hert’s case, reversed the district court, and set out new standards in which high-school participants can meaningful challenge the MHSA before they graduate and their cases become moot.

Montana Supreme Court Justice Ingrid Gustafson, writing for the unanimous court, outlined several new, key rulings that should guide the future, including that the MHSA is legally intertwined enough with public schools to be treated as a public agency, and that once the association, comprised mostly of public school employees, coaches and representatives, offers sports and other activities, a student’s right to participate becomes constitutionally tied to their right to participate in public education, as well as due process.

“We further hold that Montana students have constitutional protections in participation in offered extracurricular activities, that the District Court erred by reducing that constitutional right to a privilege or a contractual interest, and that the MHSA failed to provide (Hert) with constitutionally sufficient due process when it failed to provide notice of the issue, evidence, and timely written notice of its determination sufficient for judicial review by a court,” the opinion said.

The court also found that while the MHSA is free to set its own rules and interpret them on a case-by-case basis, it must also create a record of its decisions allowing students and parents to understand the reasoning behind those decisions, and a clear way to appeal, which could include going to court. And even then, the Supreme Court decision said, there must be enough of a record established that independent judges have a record to review – something that Gustafson said was difficult because of the MHSA’s refusal to comment.

The court record said the MHSA Executive Board heard Hert’s appeal on Aug. 16, 2023, and unanimously denied it at the meeting, but did not publicly deliberate or elaborate on it and failed to send follow-up documentation to Hert. Executive Director Brian Michelotti told the Hert family that MHSA did not have to comment on the reasons for the decision, according to the court record. 

“Both the MHSA and the students subject to its eligibility rules deserve a final decision on the merits of this appeal, as the Herts raise important questions related to due process the MHSA is or is not providing to students who are declared ineligible to compete by the MHSA,” the court said. “Without guidance from this court, the problems will repeat themselves.” 

Not only did the Supreme Court overturn the three primary findings from the district court, it also said that the way the high school association treated Hert left him at a distinct disadvantage.

“Because the MHSA provided no written record regarding the reasons for its determination, (Hert) was essentially forced to fly blind when seeking judicial review of the MHSA’s decision,” the court said. “The MHSA’s actions in this case clearly fall short of the due process required to those MHSA determines are ineligible to participate in extracurricular activities.”

Even though Hert has graduated, and the chance for him to play one final season of high school basketball has passed, the court said the issue is not completely moot and a remedy is possible. 

“Because no court can now restore his participation in that season, individualized injunctive relief is no longer available. That does not, however, eliminate the availability of declaratory relief under (Montana law).”

In other words: Hert’s loss may be a future athlete’s win as the high court set out a new framework for appeals, especially given many of them have short windows to act because of competitive high school seasons.

“A declaratory judgment will clarify that once extracurricular activities are offered, students have a constitutional protection against unconstitutional deprivation of the right to participation in extracurricular activities and are entitled to procedures sufficient to permit judicial review of adverse eligibility determination,” the court order said.

The order was clear that the court was not ruling on the validity of “The Semester Rule,” which was at stake in Hert’s case. That particular rule limits how much eligibility a student participant has based on the number of semesters enrolled. And the court said it was not making a determination about Hert’s eligibility. Instead, the court adopted three procedural due process rules going forward that MHSA must provide:

1. Notice when key issues or cases are being decided.
2. An opportunity for students to be heard.
3. A record and written decision that will allow a court to review a case.

“The absence of a reviewable record and written decision in this case fails to satisfy those minimum constitutional requirements,” the court said. 

Justices Katherine Bidegaray, Beth Baker, Laurie McKinnon and Jim Rice signed onto the decision, with Rice offering a concurring decision which disputed the idea that MHSA is a strictly  private organization, and therefore did not need to worry about constitutional requirements of due process. 

Citing several similar cases at the federal level, Rice pointed out that many states have similarly organized high-school activities associations and they are regarded as a public entity. 

“Here, the MHSA mirrors the (Tennessee association) in material respects, including that there is the kind of ‘pervasive entwinement’ with the State of Montana sufficient to treat the MHSA as a state actor,” Rice wrote. “The MHSA describes itself as ‘the governing body for interscholastic activities in the state of Montana’ and has 182 member high schools, most of which are public entities that provide funding to the MHSA through membership fees …Although it is a private association, it meets the criteria of a ‘state actor.’”